Excessive-force lawsuit against Palm Desert police revived

Maura Dolan

SAN FRANCISCO -- The mother of a mentally disturbed man who died after being restrained by Palm Desert police won reinstatement Thursday of her federal lawsuit for excessive, deadly force.

A three-judge panel of the U.S. 9th Circuit Court of Appeals said evidence suggested that U.S. District Judge Otis D. Wright II, who presided over a trial on the suit, improperly relied on his personal experience as a former police officer when he ruled for Riverside County after a jury failed to reach a verdict.

Robert Albert Appel, 48, died in 2010 after police responded to a 911 call, found an incoherent Appel sitting in his driveway in a Palm Desert gated community and tried to take him into custody.

The court said police, surmising that Appel was delusional, tried to handcuff him, but Appel started thrashing about and yelling “no, no, no.” After cuffing him, three of the four officers who responded used their knees to keep Appel down.

Appel then became still, and the officers turned him over and saw that his eyes and mouth were open. By the time paramedics arrived, Appel had stopped breathing and had no pulse.

During a six-day trial, lawyers for the police argued that Appel died as a result of cardiac arrhythmia caused by kidney failure unrelated to the struggle.

A Riverside County coroner said he found no drugs or alcohol in Appel’s body but did see “several blunt-impact injuries” on his torso, head, arms and legs, the court related.

The coroner, who classified the death as a homicide, said Appel’s heart was enlarged, which put him a higher risk for cardiac arrhythmia.

The 9th Circuit panel said the evidence suggested that Wright’s verdict stemmed from his “personal experience and not the testimony,” which under the law should have been viewed in the light most favorable to the plaintiff.

But the panel decided against reassigning the case to a different judge.

“Although we agree with Krechman that Judge Wright made several off-color comments that may not have been well-received, the record does not suggest that he was unfair,” wrote Judge Ronald M. Gould, a Clinton appointee.

In a concurrence, Judge N. Randy Smith called Wright’s conduct “worrisome.” Smith, an appointee of President George W. Bush, said Wright, also a Bush appointee, conducted the trial in a way that suggested his past personal experience biased him toward the officers.